Employee or servant of God?
A legal conundrum involving a Highland minister and his church has implications for the relationship between the church of Christ and the state – the issue behind the 1843 Disruption.
A CURRENT case of wrongful dismissal being waged against the Free Presbyterian Church by a minister who has been removed from his ministry position could have a very important bearing on the legal status of church ministers and pastors throughout the land. However, the question of whether a minister is an “employee” or “a servant of God” is not without precedent, and it could also have serious implications for state interference with church affairs.
In the 90s a woman minister within the Church of Scotland was dismissed from her charge (i.e. removed from her duties) by the national church following a self-confessed and wrong relationship with a married church elder.
The case ran for almost a decade before a resolution was reached. Essentially the story-line went as follows:
In 2006, subsequent to the Lord's ruling and 9 years after it all started (imagine the stress placed on the lady concerned over the period) the Church settled out of court.
- minister suspended by the Church in 1997
- minister resigns (under pressure to do so, she claimed) and takes Church to industrial tribunal
- industrial tribunal refuses to hear the case on the grounds that the Church of Scotland is immune from secular law regarding “matters spiritual” (of which more later)
- in 1999 minister appeals without success to the Kirk’s General Assembly which rejects her request for an ecclesiastical (church) trial
- minister appeals to Scotland’s highest court, the Court of Session in Edinburgh in 2001 which supported the tribunal’s earlier ruling
- minister appeals to House of Lords who, in 2005, ruled in her favour, and directed that the Church need to clarify its employment practices before a civil court
A legal minefield
Without doubt the Kirk’s solicitors would have spent long hours pondering the legal implications during the course of the protracted proceedings, and initially the denomination might have felt secure as the Church of Scotland Act of 1921 (aka the Declaratory Articles) does indeed give the national church immunity to independently govern its affairs on “matters spiritual”. But ultimately it may have been felt that that the Church was indeed on shaky ground.
There were several possible weaknesses in the Church’s case.
- First of all the minister concerned was not a minister in charge of a parish but operated as an assistant (and the conditions of service and legal status could differ accordingly).
- Secondly, the Church would have been obliged to differentiate between 'an employee' and 'a servant of God' – and defining the difference (if there is one) between a 'salary' and a 'stipend'.
- On a third point the claim was not so much against the Church exercising discipline, but rather made on the grounds of sexual discrimination by the Church allegedly applying different standards to male ministers found guilty of similar failings.
- Last, but certainly not least of the legal challenges, the minister could have eventually taken her case to the European courts with a real prospect of success. Very embarrassing and costly for the Church? Certainly.
In the event she didn't; and a hugh sigh of relief would have echoed around the marbled lobbies of '121' - the Kirk's HQ in George Street, Edinburgh.
Secular law overuling the church?
However, had the case gone to Europe, it would have been very interesting to see if the EU’s laws would have ultimately trumped the Church of Scotland’s immunity under the aforementioned Declaratory Articles.
And if this were ever to happen at a future date it would have massive implications regarding who is (ultimately) head of the church, Jesus Christ or secular – in this case European – law? This matter of state supremacy over church affairs (coupled with that of 'patronage') was the underlying causal factor in the Disruption of 1843 when a very substantial minority left the Church of Scotland.
But at a more daily level and back to the question of whether or not a minister/pastor is indeed an employee or a 'servant of God'.
In the question of whether or not the EU has the characteristics of an emerging superstate, William Haig once remarked:“If it looks like a duck, walks like a duck and quacks like a duck, then it’s a duck”. [In fact Haig was paraphrasing a Douglas Adams quote: "If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family anatidae on our hands."]
Take the average minister/pastor position and examine the factors relating to salary, taxation, allowances, pension, expenses, housing, etc. and one will struggle to differentiate between the prevailing terms and conditions of (excuse the word) ‘employment’, and those relating to the average worker in a secular organisation.
The church might talk of ‘stipend’ (living allowance) rather than ‘salary’, but the differences (if there are any) are otherwise obscure, and might struggle – fail even – to find justification in a court of law.
So whilst the secular media might have an altogether different interest in the current case presenting itself within the Free Presbyterian Church, much deeper questions arise for the church of Jesus Christ.
But the problem is in the church
Leaving aside the other important matter of Christians – in contradiction to the Bible’s teachings – taking each other to secular courts of law (and this is a very big subject in its own right), there is the much more fundamental question for churches up and down the land – and across the world even – of failing miserably to practice what they (sometimes, but rarely) preach regarding all-member ministry and the absolute parity of status (not function) within the priesthood of all believers.
The ‘employee or servant of God’ situation has arisen because the church (over the last 1800 years) has artificially created a 'professional class' of minister/pastor which even the Reformation failed to address. Career clericalism and professional pulpiteering which ‘ministers’ to ‘laity’ in the pews is almost indistinguishable from the hierarchical (the word means ‘priestly rule’) structures which are adopted by and operate in secular organisations. (One of the dictionary terms is 'sacerdotalism'.)
One way of avoiding the legal conundrum surrounding a minister/pastor’s employment status would be to adopt the Biblical view of every member of the body of Christ having a ‘ministry’ – with each and every minister (and the term used properly covers the whole gamut of Christian service and includes female believers also ) relying on the Lord, rather than depending on a religious organisation, for daily living.
However, that may be suggesting a step of faith too far?
Christians Together, 10/12/2008